The decade's most triggering comedy
Following the 2016 presidential election in which Hillary Clinton won the popular vote by nearly 2.9 million votes but still lost the presidency to Donald Trump, progressives revivified the movement to dismantle the Electoral College.
As the 2020 election approaches, the Electoral College has come under more direct fire, with three of the four leading Democratic candidates for president arguing for its abolition.
On Friday, I had the opportunity to speak with author Tara Ross, who has penned multiple books on the Electoral College, all of which can be found on Amazon.
During part one of this interview, which can be read here, Ross discussed why the Electoral College is immensely important, and why a popular vote would be worse for the United States. Additionally, I asked Ross about the primary challenges most often posed by opponents of the Electoral College.
In part two, we continue to address the grievances against the Electoral College, as well as the binding of electors, the National Popular Vote Interstate Compact (NPVIC), and possible alterations to the way in which we vote for the president.
DW: Proponents of a popular vote say technological advancements have rendered the Electoral College moot. Someone in Maine can get the same information as someone in Arizona because our media has become so nationalized and technologized. What would you say to that?
ROSS: It’s become conventional wisdom that lack of technology was part of why the Electoral College was created, which is sad because it’s simply not true. The Founders created the Electoral College for the same reason that they created every other check and device in our government. It’s easy to forget where they came from. They had fought a revolution because they wanted to be self-governing. They’d had no representation in the British parliament, and they fought against that. Now, they wanted to create a self-governing society, but they also remembered something that we forget – even if they had been given a seat at the table in parliament, they would have been outvoted time and time again by the majority of citizens at home in England. So, they had a very real problem before them. How do you create a government that allows the people to be self-governing even as you protect minorities, especially the small states at the time? How do you balance these two ideas? How do you balance self-governance with protection of minority groups?
They accomplished their goal by creating a Constitution that is not a straight up simple democracy because they knew that in a democracy, bare, emotional majorities can tyrannize other people. They did it by setting up a government that is partly democratic, but also partly republican – deliberation and compromise in government – and federalist, meaning we sometimes act state-by-state. These checks and balances are intended to protect all of us. It was a fine balance, yet we too casually destroy that balance.
We destroyed part of it when we passed the 17th Amendment, taking the election of U.S. Senators away from state legislatures and putting it in the hands of the people. It seemed like a no-brainer at the time, but what happened was we erased a tool that the state had to protect itself from the federal government. The Senate was intended to be a voice for the states in Congress. We erased that state voice.
So why are we surprised now that the national government has become so big and has overrun the states so much? It’s not surprising. We got rid of that part of the check and balance in our system. And if we get rid of the Electoral College, we will be getting rid of another check and balance – and we will probably be really horrified by the outcome.
DW: In Federalist 68, as I’m sure you know, it’s written that electors would be “men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.” The idea was that the electorates would protect the U.S. from unfit presidents. Now, numerous states have laws in place binding electors to the state’s popular vote. Has mandating that electors vote in a certain way betrayed the idea of Federalist 68?
ROSS: I don’t believe that the states have the power to bind their electors as they have attempted to do. There is a saying in law that “bad facts make bad law,” and it seems to me that everybody has become so focused on 2016 and the things that happened there that they have decided that binding electors is critical.
What I would say is to take a step back and think about other scenarios that might pop up, other scenarios in which we might be really happy that we let the original structure stand. Say, for instance, a presidential candidate were to have a massive stroke. They’re in a coma in the ICU. It’s the day before the meetings of the electors and we’re not even sure if the candidate is going to survive. Do we want our electors to cast their ballots for a man who may not survive until the counting of the electoral votes? We probably would prefer that the electors cast their ballots for the vice presidential candidate, that they be independent in that way, and that would be a good decision.
I would urge everybody to remove themselves from the 2016 situation and to just think about the overall picture. What do we want here? I believe the original constitutional structure left room for this kind of independent action [by] the electors. You can’t tell your state legislator once you elect them, “If you vote this way on a tax bill, I’m going to fine you $5,000 for your wrong vote.” We don’t get to do that. Electors are elected officials who, if you don’t like their action, your recourse is to vote for somebody different the next time.
Now, I do think, having said everything I just said, that we could spend more time and energy being transparent about who the electors are. If we really think that these electors can cast independent votes in emergency situations, there should be more transparency. We have forgotten that in recent decades, but voters should know who they’re voting for. They should know whether they do or don’t trust that person, that elector, to act in these emergencies. I do think we could focus on that, and I do think states should think about that angle of the situation. But I believe the 10th Circuit was right when it said electors can be independent.
DW: Do you believe that the state laws binding electors are unconstitutional?
ROSS: I do. We’ll see what the Supreme Court says. The states have the power to select electors just like they used to have the power to select United States Senators. There was never a time when the state legislatures could select a United States Senator, then dictate to that official every single vote that they cast in the United States Senate – or fine them because they disagreed with some vote. If they didn’t like the way the senator was performing in office, their recourse was to send somebody new the next time.
Electors are like that. Just like any other elected office, we have elected electors to go represent our state in the presidential election. As a matter of honor, historically, most electors have done exactly what we expect them to do when they cast their votes. That’s good for the stability of the system, and I am not trying to make light of that or to discourage that. Most of the time, we need electors to do exactly what they’re expected to do, but I also think we should not be too quick to dismiss the possibility that emergencies might crop up where we’re glad that electors have this constitutional ability to act.
DW: Can you see any potentially positive alterations to the EC?
ROSS: I would leave it exactly like it is, and that’s something I probably would not have said nearly 20 years ago when I first started studying the Electoral College. I used to think that maybe we could tweak the system here and there. For instance, I thought maybe we could tweak the House contingent election, which is the backup election procedure. For a while, I thought we should automate electoral votes. But the more I watch it play out, the more I think we should leave it alone. The system is a really fine, delicate balance, and you don’t know what will happen if you mess with any portion of it.
John F. Kennedy, who was a big fan of the Electoral College, on the Senate floor, made an argument along these lines for keeping everything just like it is. He called it a solar system of governmental power. If you change one part of the system, he said, you don’t know what will follow. What seems like a small change could start a domino effect, with really big ramifications.
This system has been serving us really well for more than two centuries, and we need to leave it alone before we tinker with something and create changes that we didn’t intend to create.
DW: Is there something that we haven’t touched on regarding the Electoral College that you want our readership to know?
ROSS: Yes. It’s worth talking about the National Popular Vote effort. That group wants to get rid of the Electoral College without the bother of a formal constitutional amendment, although they claim that’s not what they’re doing. NPV asks states to sign an interstate compact. Any state that signs this contract agrees to give all of its electors to the winner of the national popular vote, regardless of the outcome within state borders. So far, NPV has 15 states plus D.C. on board, which is 196 electors among them. When they get to 270 electors, the compact will go into effect.
That means that they will have changed our election system from the state-by-state federalist process created by the Founders to a simple national vote. They’re on track to get this done with a minority of states on board, as opposed to a constitutional amendment process that would require three-quarters of the states.
So you can see why they’re going through the compact instead of trying to get the formal constitutional amendment.
The compact is dangerous. It has many of its own problems that would be even above and beyond what a normal constitutional amendment would do. For instance, the compact cannot force non-participating states to do any particular thing.
A state like Texas could say, “Yeah, we don’t agree with this compact, and we’re going to make life really difficult for you. We’re not going to release our popular vote totals until after the meeting of the electors. Or maybe we will release the popular vote totals for the winner but not for the loser.” That would obviously skew the national tally.
Or perhaps non-participating states would change how they award their electors in the first place. Texas could say, “We have 38 electors. We used to award these winner-take-all. Now, we’re changing things. We’re going to put the name of every single elector on the ballot and Texans gets 38 votes. You guys go vote for 38 electors that you like.”
That works out great for Texans, but how would the NPV states tally the national popular vote later?
This actually happened in 1960 in Alabama, which has left a lot of disagreement about how to tally Kennedy’s vote versus Nixon’s vote in that year. Those Alabama electors all had different final tallies. If this compact goes into effect, I think you can expect to see non-participating states creating a ruckus along these lines, and it’ll create a real problem for the NPV states. That’s just the tip of the iceberg when it comes to the various ways in which the non-participating states could defend themselves from NPV.
DW: Do you think there’s any chance that it’s going to go into effect, and will it be immediately challenged up to the Supreme Court?
ROSS: I am sure it will be challenged on constitutional grounds. There are many different ways to challenge this compact. One, of course, is just a straightforward challenge saying that this is an end-run around Article V, and you can’t do that. Another is to say that the compact needs congressional consent under Article I, Section 10.
Also, if there were an attempt to actually use the compact during an election year, there will be Equal Protection lawsuits filed. For instance, if Oklahoma gets more time to early vote than California, then there’s probably a Californian who says, “That’s not fair,” and who files a lawsuit about it.
Today, these differences in state laws don’t matter because a vote cast in Oklahoma cannot change the identity of a California elector. However, when you have this compact in effect and you pretend like you can generate one national total from 51 separate processes and 51 different sets of laws, that’s going to be a problem.